The intimate zone of privacy subsumes spatial privacy (which corresponds to the freedom to let alone) and decisional privacy (which corresponds to the freedom of self-development).
On 17th October, the Indian Supreme Court delivered a historic judgment on the recognition of Same Sex Marriage. The Indian Supreme Court refused to recognize the same sex marriage.
There was a bench of five judges, two judges Justice Dhananjay Yashwant Chandrachud who is also current CJI of India, and Justice Kishan Kaul gave their separate judgment in favor of Same Sex Marriage, but, the other three Judges, Justice Ravindra Bhatt, Justice Narsimha, and Justice Hima kohli pronounced their judgments against the recognition of Same Sex Marriage.
In this case, there were 21 Petitions, the grievance of the petitioners (who were members of the LGBTQIA+ community) was not that society discriminates against them in an informal (and invisible) manner. That is a secondary but an equally important stage of how discrimination pans out against a marginalised class.
The petitioners claimed that they are discriminated on a more formal (and visible) level. The petitioners contended that the State through the operation of the current legal regime discriminates against the queer community by impliedly excluding the queer community from a civic institution: marriage.
The petitioners invoked the equality code of the Constitution to seek legal recognition of their relationship with their partner in the form of marriage. The petitioners did not seek exclusive benefits for the queer community, which are unavailable to heterosexuals. They claim that the State ought to treat them on par with the heterosexual community.
While analysing the case in his judgement, among other questions, Justice DY Chandrachud also discussed the scope of State’s regulation of those issues which are so personal to the people i.e. intimate zone. The CJI discussed the point as follows:
Intimate Zone of Privacy
While arguing the case, the Solicitor General made the following two arguments:
(i) Intimate relationships, whether between homosexual or a heterosexual couples cannot be subject to State regulation because it falls in the ‘intimate zone of privacy’;
(ii) The State regulates heterosexual marriages only because there is public interest in sustaining the human population through procreation.
For this Court to determine if the State has a duty to confer recognition upon all relationships, it must firstly delineate the contours of the State’s regulation of intimate relationships vis-à-vis privacy concerns. The plurality opinion authored by one of us (Justice D.Y. Chandrachud) in Justice KS Puttaswamy (9J) v. UOI (2017), while discussing the scope of the right to privacy, refers to an article titled “A typology of privacy” which classifies privacy into nine categories.
In addition to listing various forms of privacy, the authors have also classified the forms of privacy based on those which are necessary for the fulfilment of the freedom to be let alone and the freedom to self-development. The intimate zone of privacy subsumes spatial privacy (which corresponds to the freedom to let alone) and decisional privacy (which corresponds to the freedom of self-development). The formation of human relationships falls within the intimate zone because relationships are relegated to the sphere of the home or the private zone and they involve intimate choices.
At this juncture, it must be noted that the Indian Constitution does not recognize family or partnerships as a unit for securing rights. For example, the Irish Constitution recognizes the family as a natural unit of society and a moral institution possessing inalienable rights.
The Constitution by not recognizing the family as a rights bearing unit has rejected the school of thought where rights of individuals in a family or partnership are subsumed within the larger unit of the family. The Constitution does not promote a framework of rights where the rights of a family are given precedence over individual rights of citizens constituting that family.
Relegating actions to the ‘private’ zone has certain shortcomings. The disadvantage must be understood in consequentialist terms, that is, by identifying the effect of classifying certain activities as ‘private.’ One of the prominent effects of classifying actions as ‘private’ is that such actions are protected from regulation by the State.
Depending on how relationships are organized and managed, they can be “a beacon of freedom, or a prison.” While there are relationships which are characterized by love, mutual-respect, and devotion to one another, certain relationships are also characterized by the hierarchical power structure in which they operate. Identities such as caste, religion, gender and sexuality more often than not contribute towards the unequal power structure in the private sphere.
To recall, in a segment above, we observed that the State’s interest in regulating relationships in the form of marriage is to democratize the private space by ensuring that actions in the intimate space are in consonance with constitutional values. For the reasons in the preceding paragraph, the argument of the learned Solicitor General that the State regulates relationships in the form of marriage solely because they result in procreation is erroneous. The State’s interest in democratizing personal relationships is not specific to the institution of marriage.
The State’s regulation of marriage is merely one of the many ways by which it can fulfill these State aims. However, it is open to the State to use other forms of regulation to fulfill the interests identified above. There is public interest in the State’s regulation of all relationships because relationships involving two persons may be unequal by their very nature.
Democratization of Personal relationship
Scholars have emphasized that the democratization of personal relationships serves two purposes.
First, it contributes towards eliminating the inequality of the power structure in a relationship thereby preventing exploitation and subjugation; and
Second, it contributes towards creating a more independent and self-sufficient citizenry which would have the ability to see alternative viewpoints.
The withdrawal of the State from the domestic space leaves the disadvantaged party unprotected since classifying certain actions as being private has different connotations for those with and without power. In the case of personal relationships which are characterized by inequality, the actions of the more powerful person gains immunity from scrutiny and a degree of legitimacy.
Thus, all activities in the ‘private space’ dealing with intimate choices must not readily and blindly be categorized to be beyond the scope of the State’s regulation. The State must assess if its interest in democratizing the private space overrides the interests of privacy in a given situation.
The State has identified specific areas in the private sphere where the interest in democratizing that space overrides the interests of privacy. For example, the State regulates relationships which are in the nature of marriage through the Domestic Violence Act. The preamble to the DV Act provides that the statute was enacted to protect the rights of women “who are victims of violence of any kind occurring within a family.”
The Act regulates the conduct of persons in a domestic relationship which has been defined as a relationship between two persons who live together in a shared household where they are related by marriage, a relationship in the nature of marriage, adoption, or consanguinity.
By criminalizing actions of domestic violence against women, the State recognizes that there is an unequal power structure which operates in heterosexual relationships. The State also recognizes that the party with lesser power and autonomy may be subjected to violence and suppression and consequently, seeks to democratize the space through regulation.
However, in certain other circumstances, the State and the Courts have recognized that there is no State interest in regulating the personal space. For example, this Court has recognized that Article 21 protects a woman’s reproductive choices which includes whether she wants to terminate her pregnancy.
The Medical Termination of Pregnancy Act 1971 recognizes the decisional autonomy of women over procreation, which is an intimate aspect of their lives. In very narrow circumstances, the State regulates intimate choices about child birth and procreation. For example, the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 regulates the intimate zone by prohibiting sex-selection before and after conception. In this case, the State recognizes that the interest in preventing female foeticide and infanticide overrides the privacy interests and decisional autonomy of individuals.
The argument that the State has an interest in regulating heterosexual marriages only to sustain society through procreation is fallacious because the state does not impose a compelled choice of procreation on married heterosexual couples. Moreover, heterosexual couples need not be married to procreate nor is marriage a criteria for procreation.
Justice DY Chndrachud in Supriya @Supriyo Chkroborty v. Union of India (2023)
 Deepak Gulati v. State of Haryana, (2013) 7 SCC 675